In State v. Walker, 173 Or App 46, 51, 20 P3d 834 (2001), we explained
that a police officer conducting a vehicle inventory lawfully may open a closed container
without a warrant in only two circumstances: (1) the discovered container “announces its
contents” to such an extent that opening it does not invade a protected privacy interest
and, thus, does not constitute a search, see State v. Owens, 302 Or 196, 206, 729 P2d 524
(1986), or (2) opening the container is justified by probable cause and some exception to
the warrant requirement. (1) Accordingly, our analysis of whether an officer
conducting a vehicle inventory is entitled to open a closed container proceeds as follows:
We first ask whether the container "announced its contents" to such an extent that the
owner retained no cognizable privacy interest in its contents. If so, our analysis ends,
because the opening of such a container was not a "search" at all under Article I, section
9, of the Oregon Constitution. If the container did not "announce its contents," we next
ask if the officer conducting the inventory nevertheless had probable cause to believe the
container's contents were illicit and, if so, whether a warrantless search of the container
was justified under a recognized exception to the warrant requirement, such as officer
safety, exigent circumstances, or as a search incident to an arrest. See, e.g., State v. Lane,
135 Or App at 239 ("[I]f in the course of the inventory process the officer develops
probable cause to believe that the arrestee has committed a crime other than the one for
which he or she was arrested, the officer may conduct a search incident to the presumed
arrest for that other crime.").

We begin with the question whether the container in this case--a bottle cap
bent around a plastic bag--may be said to "announce it contents," and we readily conclude
that it does not. Whether a container "announces it contents" depends on whether those
contents are so plainly obvious that there is no privacy interest to protect. In Owens, for
example, the court held that, because a small transparent vial containing drugs
"announced its contents," the officer who opened it and tested its contents had not
conducted a "search" that is subject to the protection of Article I, section 9. 302 Or at
206. The exception is thus analogous to the plain view exception; it depends only on the
nature of the container itself --i.e., whether by its smell, appearance, or other directly
observable features, it "announces it contents"--and is thus independent of the context in
which the container was found or the subjective knowledge and experience of the officer
who found it. Id.; see also State v. Kruchek, 156 Or App 617, 622, 969 P2d 386 (1998),
aff'd by an equally divided court 331 Or 664, 20 P3d 180 (2001) (holding that the Owens
exception for containers that "announce their contents" applies only to those which "do so
in a way that announces that contraband is their sole content" (emphasis in original)).

There is nothing about a bottle cap that is bent around a plastic bag, per se,
that can be said to announce to the world that it contains drugs and only drugs. Indeed,
there is no evidence that bottle caps around plastic bags are often used in such a manner.
Although small plastic bags are very frequently used to carry drugs, see, e.g., State v.
Rocha-Ramos, 161 Or App 306, 985 P2d 217 (1999) (officer testified that drugs are often
packaged in such bags); State v. Hester, 153 Or App 247, 956 P2d 1052, rev den, 327 Or
432 (1998) (same), they obviously have a multitude of other benign uses. In any event,
plastic bags are not so uniquely associated with carrying drugs that the contents of the bag
in this case, though concealed by a bent bottle cap, was so obvious as effectively to be in
plain view. We therefore conclude that defendant retained a cognizable privacy interest
in the container's contents, and the officer's opening of it constituted a search under
Article I, section 9.

We turn to the question whether the officer's search of the closed container
nonetheless was permissible because he had probable cause and an exception to the
warrant requirement was applicable. Probable cause exists only if the arresting officer
subjectively believes--based on the underlying facts and the officer's training and
experience--that it is more likely than not that an offense has been committed and that
belief is objectively reasonable. Owens, 302 Or at 204; see also State v. Barraza, 206 Or
App 505, 509, 136 P3d 1126 (2006). Whether an officer may be said to have probable
cause to believe that a particular closed container contains drugs depends on the nature of
the container itself, as well as on the context in which the container was found and on the
knowledge and experience of the officer who finds it. The fact that one might be able to
conceive of a benign purpose for a container does not defeat the existence of probable
cause; the determinative question is whether, in the light of the officer's training and
experience, the officer's belief that the container contained a controlled substance was
reasonable. State v. English, 164 Or App at 584.

Some containers, by their very nature, may be so commonly associated
with the storage of controlled substances that their packaging alone provides, to an officer
with proper training and experience in the subject of drug detection, probable cause to
believe that they contain a controlled substance. State v. Herbert, 302 Or 237, 242, 729
P2d 547 (1986). Balloons and aluminum foil or paper "bindles" are examples of such
containers. Id.; see also State v. McCrory, 84 Or App 390, 734 P2d 359 (1987) (finding
that a paperfold bindle is so closely associated with carrying drugs that its presence, by
itself, gives rise to probable cause). Other containers, such as film canisters, are
frequently associated with drugs but not exclusively so; their presence may or may not
give rise to probable cause, depending on the context in which they are found. We have
for example, found that in some contexts a film canister can give rise to probable cause,
see, e.g., State v. Poulson, 150 Or App 164, 945 P2d 1084 (1997) (film canister found
directly alongside drug paraphernalia provides probable cause), while in other
circumstances not, see, e.g., State v. Lanig, 154 Or App 665, 669, 963 P2d 58 (1998) ("A
film canister is not so uniquely associated with the storage and transportation of drugs
that, by itself, it suggests that it contains drugs."); Lane, 135 Or App at 239 (film canister
in same car as marijuana pipe does not provide probable cause).

In addition to the qualities of the container itself, other circumstances may
give rise to probable cause. In Herbert, for example, the defendant was arrested on an
outstanding warrant for driving while suspended. During the course of the arrest, the
arresting officer observed the defendant surreptitiously reach into his pocket, pull out a
paperfold and place it in a compartment in the dashboard. 302 Or at 239. The Supreme
Court determined that the totality of circumstances was enough to give the arresting
officer probable cause to believe that the paperfold contained drugs: in addition to the
fact that paperfolds are often used to carry drugs, the defendant's furtive behavior strongly
suggested that he was attempting to dispose of the container so that it would not be
discovered on his person after he was arrested. Herbert, 302 Or at 242; seealso Lane,
135 Or App at 242 (determining that the specific conduct of suspects regarding unopened
containers can elevate an officer's suspicions to probable cause).

The presence of drug paraphernalia can, in some circumstances, give rise to
probable cause that a nearby container contains drugs. Two cases are particularly
instructive in that regard. In Lane, a police officer conducting an inventory of the
defendant's pickup truck found a gun, a marijuana pipe, a small scale, and a film canister.
The film canister was on the front seat. The police officer opened the canister and
discovered methamphetamine. 135 Or App at 236. We held that the search of the film
canister was not objectively reasonable, because the police officer did not have sufficient
grounds to believe that it contained anything other than film. Id.

In Poulson, by contrast, an officer found a film canister inside a fanny pack
that he had been authorized to search. Alongside the film cannister was a plethora of
drug paraphernalia, including razor blades, scales, a powder grinder, and a pipe. The
officer opened the film canister and found cocaine. We held that the officer's discovery
of the drug paraphernalia "together with his knowledge and experience that film canisters
found close to drug paraphernalia often contain drugs, gave him grounds reasonably to
believe that there were drugs" present in the canister. 150 Or App at 168. We
distinguished the circumstances in Lane by noting that, unlike Lane, where the canister
was found in a different location in the truck than the drug paraphernalia, in Poulson, all
the items were found in exactly the same place. "The closeness of the canister to drug
paraphernalia, combined with [the officer's] knowledge that when canisters are found in
such circumstances they often contain drugs, distinguishes this case from Lane." Id. at
169 (emphasis added).

Applying the foregoing principles to the facts of this case, we conclude that
Cockreham had probable cause to believe that the bottle cap folded around the plastic bag
that he found under defendant's seat contained drugs. Cockreham testified that he had
"almost no doubt" that the cap was concealing drugs inside the bags. Under the
circumstances, we conclude that that belief was objectively reasonable: Cockreham was
conducting an inventory of a car that he had earlier noticed was being driven suspiciously
in an area that he knew to be a frequent source of drug calls. The bag in question was
found on the floor of the car under defendant's seat, next to a methamphetamine pipe and
a used syringe containing apparent drug residue. In that sense, this case recalls Poulson
in that the container was found in the immediate vicinity of drug paraphernalia.
Moreover, a plastic bag, much like a film canister, is often used to carry drugs. Indeed, a
plastic bag that is partially stuffed into a folded bottle cap, when found next to drug
paraphernalia, is arguably inherently more suspicious than the film canister found by the
officer in Poulson. We therefore conclude that, at the point at which Cockreham found
the syringe, the methamphetamine pipe, and the plastic bag, he had probable cause to
believe that the crime of possession of a controlled substance had occurred.

Because the officer had probable cause to believe that possession of a
controlled substance had been committed, a reasonable search incident to arrest for
evidence of that crime was justified. The exception for a search incident to an arrest
allows a warrantless search when, "taking into consideration all of the surrounding
circumstances, the search is necessary to protect the arresting officers, to prevent the
destruction of evidence, or to discover evidence related to the crime for which the
defendant is under arrest." State v. Newport, 204 Or App 489, 493, 130 P3d 792 (2006).
A search for evidence related to the crime, however, must be reasonable in time, place,
and scope. State v. Caraher, 293 Or 741, 758-59, 653 P2d 942 (1982). As the Supreme
Court explained in Owens, the Oregon Constitution authorizes a reasonable investigation,
incident to an arrest for a particular crime, of closed containers, such as "wallets, purses,
cigarette cases and other personal 'effects,' found on or immediately associated with the
arrestee," * * *when it is reasonable to believe that evidence of the crime might be
located therein. 302 Or at 202. In addition, an officer who has formulated probable cause
to arrest a suspect for a crime may perform a search incident to arrest for evidence of the
crime even if the officer has not yet articulated to the person being arrested that that is the
crime for which he is being arrested. Id. at 204.

In this case, the record shows that the officer's search was limited to the
contents of the plastic bag itself, which he had found immediately under defendant's seat,
and which he opened immediately. The search was thus reasonable in time, place, and
scope.

Affirmed.

1. The analytical distinction between whether a container "announces it contents"
and whether an officer has probable cause to believe that a container holds drugs unfortunately
has been blurred in some of our cases. See, e.g., State v. English, 164 Or App 580, 994 P2d 165
(1999), rev den, 331 Or 244 (2000); State v. McCrory, 84 Or App 390, 734 P 2d 359 (1987).
Although closely related, those are distinct inquiries. When a container, because of its unique or
transparent quality, announces its contents, there is no search at all. Owens, 302 Or at 206.
When a container does not announce its contents but--because of its nature and the context in
which it is found--can be said more likely than not to contain contraband, there is a search, but
one that may nevertheless be justified by a recognized exception to the warrant requirement.
State v. Lane, 135 Or App 233, 239, 898 P2d 1358, rev den, 322 Or 360 (1995). The result often
may be the same, but the analytical paths are distinct.